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Bench Memos

NRO’s home for judicial news and analysis.

In Defense of Meaningful Retention Elections



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In 2009, the Iowa Supreme Court struck down the state’s ban on gay marriage. When the next yes/no retention election came around, in 2010, the people of Iowa voted to fire all three of the justices who were up for retention that year, each of whom had joined that opinion. This year, a fourth justice who joined that opinion (Justice David Wiggins) is up for retention, and he is being targeted by conservatives and Republicans across the state.  

This weekend the New York Times weighed in to defend Justice Wiggins. According to the Times, Republicans are “stoking intolerance and further politicizing a retention election meant to weed out incompetent or corrupt judges.”

The paper’s editors apparently forgot to read the Iowa Constitution, which does not guarantee a right to gay marriage. On the other hand, the accountability mechanism that the Times deplores, the retention election, appears explicitly in the text of Article V, Section 17, and the text says nothing about being limited to cases of incompetence or corruption. In fact, the state constitution also provides that “The governor, judges of the supreme and district courts, and other state officers, shall be liable to impeachment for any misdemeanor or malfeasance in office.” Further, the constitution also provides that:

In addition to the legislative power of impeachment of judges as set forth in article three (III), sections nineteen (19) and twenty (20) of the constitution, the supreme court shall have power to retire judges for disability and to discipline or remove them for good cause, upon application by a commission on judicial qualifications. 

All of this strongly suggests that the drafters of the state constitution believed impeachment, discipline, and retention elections would serve different purposes.

Iowa’s supreme-court judges are initially selected by an unaccountable lawyer-dominated commission, via the system known as the Missouri Plan. As in other states, that method of selection has tilted Iowa’s judicial branch to the left on a range of issues, including gay marriage. And just as the people of Iowa demand more accountability, Justice Wiggins and his allies at the Times make the case for less.  



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